Sukhsai Vs State of Chhattisgarh

This appeal has been preferred by the accused under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as the ‘C.P.C.’), questioning the legality and propriety of the judgment of conviction and order of sentence dated 21/05/2018 passed by the learned Sessions Judge, Surajpur, District Surajpur (C.G.) in Sessions Trial No.01/2017, whereby, the appellant has been convicted for having committed the murder of his grandfather, under Section 302 I.P.C. and sentenced to undergo rigorous

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Page 2 of 11 imprisonment for life and to pay fine amount of Rs.100/-, in default of payment of fine, has to suffer additional rigorous imprisonment for seven days.

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Briefly stated the case of the prosecution is that on 31.10.2016 at about 05.30 PM, it was informed by the appellant to his father-Dalsai that he demanded cock ( murga ) from his grandfather-Ramprasad, the deceased, but, it was refused, therefore, he slapped him three to four times, owing to which, he became unconscious and died after sometime. Upon knowing the said fact, he (Dalsai) has given merg intimation on 01.11.2016 vide Ex.P-13 to the Police Station Ramanujnagar, who in turn, has registered the FIR (Ex.P-18). Inquest of the deadbody was conducted vide Ex.P-7 and the deadbody was sent for autopsy, which was conducted by Dr. S. B. Singh (PW-1), who opined the cause of death to be excessive bleeding from his head and is found to be homicidal in nature. Based upon the disclosure statement (Ex.P-9) of the accused, the bamboo stick was recovered vide Ex.P-10 from the verandah of the deceased’s house i.e. the place of incident and, according to the query report (Ex.P-2), the alleged injury could be caused with the said seized article. The appellant was arrested on

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Page 3 of 11 02.11.2016 vide arrest memo (Ex.P-21) and after recording the statement of prosecution witnesses, the appellant was chargesheeted for the offence punishable under Section 302 IPC and, the final report was accordingly submitted before the Judicial Magistrate First Class, Surajpur, who in turn, committed the matter before the learned Sessions Judge, Surajpur, in exercise of the powers enumerated under Section 209 Cr.P.C. for its trial.

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The appellant has denied the charge so framed and claimed to be tried.

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In order to bring home the guilt of the appellant, the prosecution has examined as many as 10 witnesses and produced 25 documents, Ex.P-1 to P-25, while none was examined by the appellant in rebuttal.

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After considering the evidence led by the prosecution, it was held by the trial Court based upon the statement of Nawal Sai (PW-9) that the appellant has made extra-judicial confession before him and, since he was found to be at home along with the deceased and as he has given a false explanation by taking a plea of alibi, the appellant is, therefore, held to be author of the alleged crime. In consequence, the

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Page 4 of 11 appellant has been convicted under Section 302 IPC and sentenced as mentioned hereinabove.

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Being aggrieved with the aforesaid judgment of conviction and order of sentence, the appellant has preferred this appeal.

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Learned counsel appearing for the appellant submits that the finding of the Court below holding that the appellant has made extra judicial confession before Nawal Sai (PW-9) and that by holding further that he was at home along with the deceased and has offered false explanation and thereby, holding the appellant guilty for commission of the alleged crime, is apparently contrary to the materials available on record. While inviting attention to the statement of the said witness (PW-9), it is submitted that a bare perusal of the entire of his evidence would show that the appellant has not made extra judicial confession as observed and held by the trial Court, nor the appellant was found to be at home. It is contended further that since the trial Court has failed to evaluate the entire evidence led by the prosecution in its proper manner, therefore, the conviction of the appellant is liable to be set aside.

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Page 5 of 11

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1. On the other hand, learned counsel appearing for the respondent/State has supported the impugned judgment of conviction and order of sentence as passed by the trial Court.

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We have heard learned counsel appearing for the parties and perused the entire record carefully.

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From perusal of the record, it appears that the autopsy of the deadbody of the deceased-Ramprasad was conducted by Dr. S. B. Singh (PW-1), who has submitted his report (Ex.P-1) while opining the cause of death of the deceased to be excessive bleeding from his head and, which is homicidal in nature. After due consideration of the said postmortem report (Ex.P-1), duly supported by the said Doctor (PW-1), the learned trial Court has rightly arrived at a conclusion that the cause of death of the deceased-Ramprasad is homicidal in nature and we, accordingly, affirm the same.

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It is now to be considered, as to whether finding of the Court below holding the appellant guilty for the commission of alleged crime is based upon due and proper appreciation of the evidence led by the prosecution or not ?

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The conviction of the appellant has been made by the trial Court mainly on two grounds; firstly upon extrajudicial confession made by the appellant to Nawal Sai (PW-9) and, secondly by offering a false plea of alibi by the appellant.

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In order to consider the aforesaid findings of the trial Court, it is necessary to examine the statement of the prosecution witnesses.

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Dilbaso (PW-2), the aunty (Buwa-father’s sister) of the appellant, who was residing with her father i.e. the deceased-Ramprasad, as she was deserted by her husband, stated that on the fateful day, the appellant was at home with her father-Ramprasad and, she had gone to the field for harvesting the crops and upon her returning, has seen the appellant-Sukhsai assaulting her father with hands and fists, when he (deceasedRamprasad) refused to fulfill his demand of Cock ( murga). It is stated further that owing to his alleged assault, her father has died. She was, however, not found to be consistent with regard to her said version in her cross-examination. No reliance, therefore, could be placed upon her testimony.

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Smt. Kamalo (PW-3) is the mother of the appellant,

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Page 7 of 11

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but, has turned hostile without supporting the prosecution version.

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Dalsai (PW-4) is the father of the appellant and according to him, the appellant (his son) had gone to the field along with him and deposed further that when he returned home, his father(deceased Ramprasad) was lying on floor, but, has not seen his son at home. This witness has also not supported the prosecution story.

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Nawal Sai (PW-9) is the another son of the deceased (Ramprasad), who was informed by his sister-Dilbaso (PW-2) that the appellant (his nephew) and his father was at home and deposed further that his nephewSukhsai informed him that he assaulted the deceased with hands, fists and legs and thereafter fled away from the spot. He was, however, not found to be consistent with his said version that “he was informed by the appellant that he assaulted his father and/or has made such confession”. Other prosecution witnesses are formal in nature as they have not stated anything regarding the alleged incident.

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Based upon the statement of aforesaid prosecution witnesses, particularly the statement of said Nawal Sai

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Page 8 of 11 (PW-9), it is difficult to hold that the appellant has made extra-judicial confession before him, yet the trial Court based upon his version, has convicted the appellant. It, thus, appears that the trial Court by misinterpreting his statement, has convicted the appellant for the offence punishable under Section 302 IPC.

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It is to be noted at this juncture that after analyzing the various judgments of the Supreme Court, certain guidelines pertaining to the extra-judicial confession have been made by the Supreme Court in the matter of Sahadevan and Another V. State of Tamil Nadu, reported in (2012) 6 SCC 403, wherein , guidelines so made at para 16, read as under:-

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“Upon a proper analysis of the abovereferred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

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i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

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ii) It should be made voluntarily and should be truthful.

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Page 9 of 11

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iii) It should inspire confidence.

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iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

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v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

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vi) Such statement essentially has to be proved like any other fact and in accordance with law.”

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In view of the aforesaid principle laid down by the Supreme Court, it is, thus, evident that the extra judicial confession is a weak piece of evidence and unless and until such confession is found to be voluntary, trustworthy and reliable, the conviction solely on the basis of the same, without corroboration, would not be justified. Therefore, merely on the basis of testimony of Nawal Sai (PW-9), which is even otherwise not found to be consistent, the conviction of the appellant based upon such a weak piece of evidence cannot be held to be sustainable in the eye of law.

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In so far as false explanation offered by the appellant is concerned, it appears that the alleged incident had taken place at about 04.30 PM, when appellant, his

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Page 10 of 11 parents (father-Dalsai and mother-Kamalo) and Dilbaso (Buwa-father’s sister) had gone to the field, but, based upon the contradictory statements, as revealed from the testimony of Dilbaso (PW-2) and the appellant’s father-Dalsai (PW-4), it is difficult to hold that at the relevant point of time, the appellant was at home with his grandfather (the deceased-Ramprasad), as the statement of Dilbaso (PW-2) would show that the appellant was at home with her father (the deceased-Ramprasad), but, it was not found to be so, in view of the statement of father of the appellant i.e. Dalsai (PW-4). The prosecution has, thus, failed to establish the fact by way of cogent and reliable evidence that he was at home at the relevant point of time, with his grandfather (the deceased-Ramprasad). In any case, the explanation required to be made under Section 106 of the Indian Evidence Act would be attracted only when it would be impossible or extremely difficult for the prosecution to prove the fact which is especially within the knowledge of the accused and knowledge of that fact is not available to the prosecution. The burden would, therefore, cannot be placed upon the accused to prove his innocence by relieving the prosecution from its burden of proof as

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Page 11 of 11 the prosecution has to stand on its own footings and cannot derive any strength or support from the weakness of the defence. Since the prosecution has failed to establish the fact that the appellant was with the deceased-Ramprasad at the relevant point of time at home, therefore, the finding of the trial Court convicting the appellant as such cannot be upheld.

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Consequently, the appeal is allowed and the impugned judgment of conviction and order of sentence dated 21/05/2018 passed by the learned Sessions Judge, Surajpur, District Surajpur (C.G.) in Sessions Trial No.01/2017, is hereby set aside and the appellant shall be set at liberty forthwith, unless required in connection with any other case.

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Let a certified copy of this judgment along-with the original record be transmitted to the concerned trial Court forthwith for necessary information and action, if any. A certified copy of the judgment may also be sent to the concerned Jail Superintendent wherein the appellant is suffering the jail sentence.

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S SD/SD/- (Sanjay K. Agrawal) (Sanjay S. Agrawal) Judge Judge

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Tumane

Sukhsai v. State of Chhattisgarh

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Sukhsai v. State of Chhattisgarh

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